EEOC And DOJ Issue Important Guidance On Preventing AI- and Technology-Related Disability Discrimination

By Andrew L. Scroggins and Sarah K. Bauman

 Seyfarth Synopsis: As we formerly reported in this article, previous Oct the EEOC put businesses on observe of an initiative to guarantee that artificial intelligence (“AI”) and other technological innovation made use of in hiring and work choices comply with federal anti-discrimination regulations. Regular with this the latest initiative, on Might 12, 2022, the EEOC shared direction to aid employers utilizing AI technological innovation to stay compliant with the Us residents With Disabilities Act (“ADA”). The DOJ adopted accommodate by publishing identical advice relating to AI-related incapacity discrimination on the identical working day.

These guides are an vital browse for companies who presently use — or are contemplating making use of — AI and other technological instruments to boost efficiency in choosing and employment conclusions.

The EEOC’s Steerage

Entitled the “Americans With Disabilities Act and the Use of Software program, Algorithms, and Artificial Intelligence to Evaluate Work Applicants and Personnel,” readily available here, the EEOC’s steerage discusses how current ADA requirements may possibly utilize to the use of AI, program applications, and algorithms in work-associated selection-creating processes and methods. The steerage also gives handy information and facts and recommendations to employers in an effort to aid them with ADA compliance when employing this sort of equipment.

Precisely, the EEOC clarifies how an employer’s use of AI and other technological resources can discriminate from disabled people in the that means of the ADA, group the potential sorts of discrimination into a few wide classes: (1) failing to moderately accommodate an employee’s incapacity (2) screening out qualified people today with disabilities or (3) posing “disability-relevant inquiries” or seeking info that qualifies as “medical examination,” right before giving the candidate a conditional offer you of employment. The direction concludes by furnishing companies with promising procedures to be followed when examining career applicants and personnel with AI equipment.

The EEOC supplies numerous examples of how the above 3 ADA violations could be implicated. For example, if an employer administers a exam through computer computer software, it challenges violating the ADA if it fails to offer prolonged time or an substitute edition of a take a look at, these as one particular that is suitable with available technology (like a display reader) as a sensible accommodation to individuals who need to have it on account of their disability. Similarly, employers may perhaps run afoul of the legislation if AI and other applications final result in decreased scores or evaluation success for persons with disabilities.

The EEOC suggests numerous promising tactics for businesses when employing AI instruments, these as: education team to acknowledge and procedure requests for acceptable lodging as speedily as achievable informing career candidates and workers that sensible accommodations are out there for people today with included disabilities making certain that AI instruments only evaluate capabilities or qualifications that are genuinely important for the position and confirming, right before obtain, with AI distributors that the AI instrument does not inquire individuals thoughts most likely to elicit information and facts about a incapacity.

The DOJ’s Steerage

Entitled “Algorithms, Synthetic, and Disability Discrimination in Choosing,” the DOJ’s steerage, offered below, equally clarifies how algorithms and AI intelligence can lead to incapacity discrimination in hiring, particularly with regard to sensible lodging and monitor-outs.

The DOJ’s assistance provides several examples of the varieties of technological equipment that employers are applying and the methods in which this sort of resources can discriminate in failing to realistic accommodate or screening out disabled applicants. The direction also offers tips to businesses on ADA-compliant procedures, this sort of as delivering and employing clear processes for requesting reasonable lodging.

Implications For Companies

From FY 2020 to FY 2021, ADA scenarios enhanced reasonably significantly, and they now represent 36% of all fees filed with the EEOC. As these kinds of statements continue on to rise, organizations must be knowledgeable of the unique methods in which technological progress like AI tools can lead to disability discrimination prices and lawsuits. This is primarily critical for companies that carry on to improve — therefore demanding increased performance in the hiring system — in the midst of a world-wide pandemic the place remote perform (and use of digital platforms) have turn into the norm.